Beruflich Dokumente
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The United States of America, through its attorneys, hereby responds to Defendants' Joint
The Defendants jointly seek to dismiss Count 2 of the indictment pursuant to Fed. R.
Crim. P. 12(b) on grounds that the five-year statute of limitations has expired. Such a motion to
dismiss may be raised only on legal grounds prior to trial. The Defendants, however, have
For purposes of a Rule 12(b) motion, a court must accept the factual allegations
contained in the indictment as true in order to protect the sanctity of the grand jury and prevent a
mini-trial before the trial. Costello v. United States, 350 U.S. 359, 363 (1956). If an indictment is
valid on its face, a defendant may not challenge it on grounds that allegations in it are not
supported by adequate evidence. Id. at 363. Rule 12(b) contemplates challenges made to the
legal sufficiency of an indictment that are capable of determination by the court without a trial.
Such challenges cannot raise factual issues that need to be resolved by a jury.
U.S.v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986), cert. denied, 478 U.S.
1007 (1986). A defendant may not challenge factual allegations in an indictment through a Rule
12(b) motion. U.S. v. Mann, 517 F.2d 259, 267 (5th Cir. 1975), cert. denied, 423 U.S. 1087
(1976). A defense motion under this rule is an improper method of asserting a defense to
anticipated trial evidence. U.S. v. Nikuda, 8 F.3d 665, 669 (9th Cir. 1993).
Defendants argue strenuously in their motion, based upon their examination of pre-trial
discovery materials, that the government will be unable to meet its burden of proof at trial with
respect to Count 2. This is precisely the type of argument that is not permitted in a motion to
dismiss under Rule 12(b) because it invades the province of the trial jury. Shortt, 785 F.2d at
1452.
Initially, it should be noted that this argument is entirely based upon the Defendants'
analysis of materials made available to them through the discovery process. Pre-trial discovery
does not serve to reveal every shred of evidence that the government will present at trial.
Secondly, the Defendants' argument is obviously based upon their subjective interpretation of the
available evidence. The government will present sufficient evidence at trial to prove beyond a
reasonable doubt that the conspiracy in Count 2 did not end until 1992.
Defendants cite no legal authority for their proposition that the government should be
ordered to make a good faith showing to the Court prior to trial that Count 2 is not time-barred.
Their assertion that such a showing would not be burdensome upon the government does not
remedy the inherent defect in the nature of their motion. The only showing that the government
is required to make is that a grand jury returned this indictment alleging that the conspiracy
2
CONCLUSION
The Defendants are free to endeavor to show and argue to the jury at the trial of this
indictment that the conspiracy alleged in Count 2 terminated more than five years before the
indictment was returned. This is an issue that simply cannot be resolved prior to trial as a matter
WHEREFORE, the government respectfully requests that the Defendants' Joint Motion to
Respectfully submitted,
____/s/_______________________
DAVID B. SHAPIRO
DUNCAN S. CURRIE
GLENN A.HARRISON
WILLIAM C. MCMURREY
Attorneys
U.S. Department of Justice
Antitrust Division
1601 Elm Street, Suite 4950
Dallas, Texas 75201-4717
(214) 655-2700
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ORDER
The Court, having considered the Defendants' Joint Motion to Dismiss Count 2 of
the Indictment and Brief in Support Thereof and the Government's Response hereby finds that
_____________________________________
JERRY BUCHMEYER, CHIEF JUDGE
UNITED STATES DISTRICT COURT
CERTIFICATE OF SERVICE
This is to certify that true and correct copies of the foregoing Government's
Response to Defendants' Joint Motion to Dismiss Count 2 of the Indictment and proposed Order
were mailed via Federal Express on the ____ day of December 1995, to
R. H. Wallace, Esq.
Shannon, Gracey, Ratliff & Miller, L.L.P.
2200 First City Bank Tower
201 Main Street
Fort Worth, Texas 76102-9990
______/s/__________________________
DUNCAN S. CURRIE
Attorney